Filed 7/20/26 P. v. Lee CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B345026
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.
v. XEAKA043577-01)
MIKE WEI-CHUNG LEE,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Jacqueline Lewis, Judge. Affirmed.
Nancy Gaynor, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Colleen M. Tiedemann and Zachary
John Crvarich, Deputy Attorneys General, for Plaintiff and
Respondent.
INTRODUCTION
In 1999 a jury convicted Mike Wei-Chung Lee of attempted
murder, assault with a semiautomatic firearm, mayhem,
burglary, and conspiracy to commit burglary. In 2023 Lee filed a
petition for resentencing under Penal Code section 1172.6.1 The
superior court ruled Lee failed to state a prima facie case for
relief and denied the petition without issuing an order to show
cause. Lee argues that, because the record of conviction does not
foreclose the possibility the jury convicted him of attempted
murder on a natural and probable consequences theory, the
superior court erred in failing to issue an order to show cause and
denying his petition. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. A Jury Convicts Lee of Attempted Murder and Other
Crimes, and We Affirm
In February 1999 Lee, Paolo Antonio Banaag, and four
other men made a plan to steal a safe from a house while the
owner was not home. Banaag drove Lee to the house. Lee and
some of the other men broke a window and entered the house,
while Banaag drove around the neighborhood looking for police
and witnesses. Lee carried the safe to a car and put it in the
trunk. Lee walked up the street looking for Banaag; the other
men drove away. A neighbor who saw the men carrying what
looked like a computer monitor called the police. As the neighbor
stood in the street speaking with the dispatcher, another
1 Statutory references are to the Penal Code.
2
neighbor, Gary Kisely, drove up. The first neighbor told Kisely
the house across the street had been burglarized, and Kisely
drove off looking for the burglars. Kisely spotted Lee and drove
his truck on the sidewalk to block Lee’s path. Kisely jumped out
of the truck, yelled “freeze, motherfucker,” and told Lee to sit on
the curb. (People v. Banaag (May 22, 2001, B140320) [nonpub.
opn.] (Lee I).)2
Banaag arrived and parked his car to block Kisely’s truck.
Banaag pointed his gun at Kisely and told him to freeze. Lee ran
to Banaag’s car, and Kisely ran toward his truck. Lee took the
gun from Banaag, yelled “okay, motherfucker,” and fired three
shots at Kisely as he tried to climb in his truck. Two of the
bullets hit the truck. One bullet entered the right side of Kisely’s
mouth, removed some of his teeth and part of his tongue,
fractured his jaw, and exited the left side of his neck. (Lee I,
supra, B140320.)
A jury convicted Lee of attempted murder (§§ 187, subd. (a),
664), assault with a semiautomatic firearm (§ 245, subd. (b)),
mayhem (§ 203), burglary (§ 459), and conspiracy to commit
burglary (§ 182, subd. (a)(1)). The jury found that, in committing
attempted murder, assault with a semiautomatic firearm, and
mayhem, Lee personally inflicted great bodily injury causing the
victim to become comatose due to brain injury or to suffer
2 We rely on the factual summary from the opinion in Lee’s
direct appeal only to provide some factual background for this
appeal, not to decide whether the superior court erred in denying
Lee’s petition. (See People v. Lopez (2026) 19 Cal.5th 639, 649
fn. 2 [factual descriptions from a previous appellate opinion “do
not constitute factual findings for purposes of the [section 1172.6]
petition”].)
3
paralysis of a permanent nature, within the meaning of
section 12022.7, subdivisions (a) and (b). The jury also found that
Lee personally used a firearm in committing assault with a
semiautomatic firearm, within the meaning of section 12022.5,
subdivisions (a) and (d), and that, on the attempted murder and
mayhem convictions, Lee personally used and intentionally
discharged a firearm causing great bodily injury or death, within
the meaning of section 12022.53, subdivisions (b), (c), and (d).
Lee admitted he committed the offenses for the benefit of, at the
direction of, or in association with a criminal street gang, with
the specific intent to promote, further, or assist in criminal
conduct by gang members, within the meaning of section 186.22,
subdivision (b)(1). The trial court found Lee had a prior serious
or violent felony conviction, within the meaning of the three
strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).
On Lee’s conviction for attempted murder, the trial court
sentenced Lee to a prison term of 18 years (the upper term of
nine years, doubled under the three strikes law), plus 25 years to
life for the firearm enhancement under section 12202.53,
subdivision (d); on his burglary conviction, the court sentenced
him to a prison term of two years eight months (one-third the
middle term of four years, doubled under the three strikes law),
plus three years for the gang enhancement, for an aggregate
prison term of 48 years and eight months to life. The court
stayed execution of the sentences on the other convictions and
enhancements. We affirmed the judgment. (Lee I, supra,
B140320.)
4
B. The Superior Court Denies Lee’s Petition for
Resentencing Under Section 1172.6
In February 2023 Lee filed a petition for resentencing
under section 1172.6, checking boxes on a form petition stating
he was eligible for relief. The superior court appointed counsel,
and the People filed a response. The People submitted the jury
instructions the trial court gave at Lee’s trial, the jury’s verdicts,
and our opinion in Lee I. The People argued Lee “was prosecuted
and convicted as the actual perpetrator who committed this crime
with actual malice.” Though Lee was prosecuted with a
codefendant, the People argued, Lee was the only defendant
“charged with and found guilty of personal gun use allegations.”
Counsel for Lee did not submit a brief in support of the petition.
At the hearing neither counsel for Lee nor the prosecutor
presented any argument. The superior court denied Lee’s
petition without issuing an order to show cause. The court ruled
that, though the jury was instructed on the natural and probable
consequences doctrine, that instruction applied only to Banaag,
and not to Lee, and that “Lee was clearly prosecuted as the actual
perpetrator.” The court stated that the jury found Lee
“discharged a weapon causing great bodily injury” and that
Banaag “was charged and found guilty only of the principal gun
use allegation.” Because Lee “was the only principal in the crime
that committed the attempted murder with malice aforethought,”
the court concluded, “no prima facie case has been met.” Lee
timely appealed.
5
DISCUSSION
A. Applicable Law and Standard of Review
Effective 2019, the Legislature substantially modified the
law governing accomplice liability for murder by eliminating the
natural and probable consequences doctrine as a basis for finding
a defendant guilty of murder and significantly narrowing the
felony-murder exception to the malice requirement for murder.
(People v. Oyler (2025) 17 Cal.5th 756, 835; People v. Patton
(2025) 17 Cal.5th 549, 558 (Patton); People v. Arellano (2024)
16 Cal.5th 457, 467-468; see People v. Strong (2022) 13 Cal.5th
698, 707-708 [felony murder]; People v. Gentile (2020) 10 Cal.5th
830, 842-843 [natural and probable consequences doctrine].)
Section 188, subdivision (a)(3), now prohibits imputing malice
based solely on a person’s participation in a crime and requires
proof of malice to convict a defendant of murder, except under the
revised felony-murder rule. (§§ 188, subd. (a)(3), 189, subd. (e);
Patton, at p. 558; Arellano, at pp. 467-468.) Effective 2022, the
Legislature amended section 1172.6 to apply to persons convicted
of “attempted murder under the natural and probable
consequences doctrine.” (§ 1172.6, subd. (a); see People v.
Delgadillo (2022) 14 Cal.5th 216, 223, fn. 3; People v. Rodriguez
(2024) 103 Cal.App.5th 451, 457.)
Section 1172.6 authorizes a person convicted of felony
murder, murder under the natural and probable consequences
doctrine, or attempted murder under the natural and probable
consequences doctrine, to petition the superior court to vacate the
conviction and resentence the defendant on any remaining counts
if he or she could not now be convicted of murder or attempted
murder because of the legislative changes to the definitions of
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murder. (People v. Oyler, supra, 17 Cal.5th at p. 835; People v.
Arellano, supra, 16 Cal.5th at pp. 468-469.) If a section 1172.6
petition contains all the required information, the court must
appoint counsel to represent the petitioner if requested.
(§ 1172.6, subd. (b)(1)(A), (b)(3); Patton, supra, 17 Cal.5th at
pp. 558-559; People v. Lewis (2021) 11 Cal.5th 952, 962-963.) The
People must file a response to the petition, the petitioner may file
a reply, and the court must hold a hearing to determine whether
the petitioner has made a prima facie showing he or she is
entitled to relief. (§ 1172.6, subd. (c); People v. Antonelli (2025)
17 Cal.5th 719, 724.)
In deciding whether the petitioner has made a prima facie
showing for relief under section 1172.6, “‘“‘the court takes
petitioner’s factual allegations as true and makes a preliminary
assessment regarding whether the petitioner would be entitled to
relief if [those] factual allegations were proved. If so, the court
must issue an order to show cause.’”’” (Patton, supra, 17 Cal.5th
at p. 563; see People v. Lewis, supra, 11 Cal.5th at p. 971.) The
court also “looks beyond the face of the petition” and may
consider the record of conviction, which will “necessarily inform
the trial court’s prima facie inquiry . . . , allowing the court to
distinguish petitions with potential merit from those that are
clearly meritless.” (Patton, at p. 563; see Lewis, at p. 971.) In
“‘reviewing any part of the record of conviction at this
preliminary juncture, a trial court should not engage in
“factfinding involving the weighing of evidence or the exercise of
discretion.”’” (Patton, at p. 563; see Lewis, at p. 972.) “‘If the
petition and record in the case establish conclusively that the
defendant is ineligible for relief, the trial court may dismiss the
petition. [Citations.] If, instead, the defendant has made a
7
prima facie showing of entitlement to relief, “the court shall issue
an order to show cause.”’” (People v. Arellano, supra, 16 Cal.5th
at p. 469.) We independently review an order denying a petition
under section 1172.6 at the prima facie review stage. (People v.
Nino (2025) 111 Cal.App.5th 844, 853; People v. Jackson (2025)
110 Cal.App.5th 128, 145, review granted June 11, 2025,
S290577.)
B. The Superior Court Did Not Err in Denying Lee’s
Petition Under Section 1172.6
A defendant convicted of attempted murder is eligible for
relief under section 1172.6 only if he or she was convicted “under
the natural and probable consequences doctrine.” (§ 1172.6,
subd. (a); see People v. Anaya (2025) 117 Cal.App.5th 615, 619
[section 1172.6 applies to “defendants convicted of attempted
murder . . . only if their convictions were ‘based on the natural
and probable consequences doctrine’”]; People v. Rodriguez,
supra, 103 Cal.App.5th at p. 457 [same].) Where the record of
conviction establishes a defendant convicted of attempted murder
was the actual perpetrator, the defendant is ineligible for relief
under section 1172.6 as a matter of law. (People v. Muhammad
(2024) 107 Cal.App.5th 268, 282; see Anaya, at p. 621 [superior
court did not err in denying a petition at the prima facie stage
where the defendant “was convicted of attempted murder as the
direct perpetrator who acted with intent to kill”].)
Lee is ineligible for relief because the record of conviction,
which includes the jury instructions and verdicts, shows the jury
did not convict him of attempted murder under the natural and
probable consequences doctrine. (See People v. Antonelli, supra,
17 Cal.5th at p. 731 [in “assessing section 1172.6 petitions from
8
individuals convicted following jury trials, the jury instructions
will be critical”]; People v. Curiel (2023) 15 Cal.5th 433, 465 [“we
may look to the jury’s verdicts, and the factual findings they
necessarily reflect, to determine whether the record of conviction
refutes the factual allegations in [the defendant’s] petition”];
People v. Nguyen (2024) 103 Cal.App.5th 668, 677 [“In making
the prima facie determination, the court may rely on the record of
conviction, including the jury instructions and verdict forms.”].)
The trial court instructed the jury with CALJIC No. 8.66
that the People had to prove two elements to convict Lee of
attempted murder: (1) a “direct but ineffectual act was done by
one person towards killing another human being” and (2) the
“person committing the act harbored express malice
aforethought, namely, a specific intent to kill unlawfully another
human being.” Though the trial court also instructed the jury on
the natural and probable consequences doctrine with a modified
version of CALJIC No. 3.02 (1997 rev.), the instruction referred
to Banaag, not Lee.
In addition, the instructions and verdict forms for the
firearm enhancement under section 12022.53 show the jury found
Lee, not Banaag, was the shooter. The prosecutor alleged Lee
personally and intentionally discharged a firearm causing great
bodily injury or death under section 12022.53, subdivision (d), but
with respect to Banaag, alleged only that a principal personally
and intentionally discharged a firearm causing great bodily
injury or death under section 12022.53, subdivision (e)(1). In
finding these allegations true and convicting Lee and Banaag of
attempted murder, the jury found that Lee committed attempted
murder by taking the direct but ineffectual act of shooting Kisely
with the intent to kill and that Banaag aided and abetted Lee in
9
that crime, either as a direct aider and abettor or under the
natural and probable consequences doctrine.
Lee concedes that the “record of conviction shows that [he]
shot and wounded the victim of the attempted murder, and that
the prosecutor proceeded on the theory that he did so with intent
to kill.” He argues, however, the instructions on conspiracy to
commit burglary allowed the jury to convict him of attempted
murder without finding he intended to kill. It’s a creative
argument, but it falls just short.
The trial court instructed the jury a conspiracy was “an
agreement entered into between two or more persons with the
specific intent to agree to commit the crime of burglary and
followed by an overt act . . . by one or more of the parties for the
purpose of accomplishing the object of the agreement.” The court
described six overt acts allegedly committed by Lee, Banaag, and
the four other men. The court also instructed the jury on
conspiracy with CALJIC No. 6.11, “Conspiracy—Joint
Responsibility,” as follows: “A member of a conspiracy is not only
guilty of the particular crime that to his knowledge his
confederates agreed to and did commit, but is also liable for the
natural and probable consequences of any crime of a co-
conspirator to further the object of the conspiracy, even though
that crime was not intended as a part of the agreed upon
objective and even though he was not present at the time of the
commission of that crime act. [¶] You must determine whether
the defendant is guilty as a member of a conspiracy to commit the
originally agreed upon crime or crimes, and, if so, whether the
crime alleged in [count] 1, attempted murder, count 2, assault
with a semi-automatic firearm, and [count] 3, mayhem was
perpetrated by a co-conspirator in furtherance of that conspiracy
10
and was a natural and probable consequence of the agreed upon
criminal objective of that conspiracy.” (Italics added.)
Lee argues that, under these instructions, once the jurors
decided Lee was guilty of conspiracy to commit burglary, “the
only additional finding necessary for his conviction of attempted
murder was that any of the coconspirators committed the
attempted murder as a natural and probable consequence of the
burglary.” Lee contends that, even if one or more jurors had
reasonable doubt whether Lee intended to kill, they could have
found Banaag or one of the other four coconspirators “did intend
to kill and took a direct step toward attempted murder by
handing the gun to [Lee] or committing some other act as a direct
step to accomplish the desired result.” Thus, Lee concludes, the
jury could have convicted him, via the instructions on conspiracy
to commit burglary, of attempted murder on a natural and
probable consequences theory.3
It is true, as Lee suggests, the natural and probable
consequences portion of the conspiracy instruction can be
“problematic . . . where a defendant is convicted of murder or
attempted murder based on a conspiracy to commit ‘a lesser
crime that resulted in murder.’” (People v. Lovejoy (2024)
101 Cal.App.5th 860, 867.)4 The jury instructions and verdicts in
3 The People do not respond to this argument.
4 In 2019 CALJIC No. 6.11 was revised to state a member of
a conspiracy is “liable for the natural and probable consequences
of any [crime] [act] [other than murder] of a co-conspirator to
further the object of the conspiracy.” (Spring 2019 rev., italics
added.) The current version of CALCRIM No. 417 includes the
following bracketed portion, to be given in cases where the
11
this case, however, show the jury did not rely on the natural and
probable consequences doctrine to find Lee guilty of attempted
murder. The jury instruction on conspiracy described six alleged
overt acts in furtherance of the conspiracy to commit burglary:
(1) “defendants Mike Lee, Antonio Banaag and Dennis Tsui[5] met
at a restaurant in Monterey Park to plan the burglary of Susanna
Leung’s house”; (2) “Mike Lee, Antonio Banaag and Dennis Tsui
met with Jason Kang and Jason Cheung and Richard Chen at the
Puente Hills mall”; (3) “defendant Mike Lee, Antonio Banaag and
Dennis Tsui went to the home of Susanna Leung in two separate
cars one driven by Banaag the other by Tsui”; (4) “Mike Lee along
with Jason Kang and Jason Cheung entered the home of Susanna
Leung and took a portable safe”; (5) “Antonio Banaag gave
defendant Mike Lee a gun, with which defendant Mike Lee shot
Gary Kisely”; and (6) “Dennis Tsui transported the safe away
from the home of Susanna Leung.”6
Neither the jury instruction on overt acts nor anything else
in the record of conviction suggested Tsui, Kang, Cheung, or
Chen was a direct perpetrator of the attempted murder of Kisely.
defendant is charged with murder or attempted murder:
“[A member of a conspiracy cannot be held criminally responsible
for (murder/[ or] attempted murder) solely because the (murder/
[or] attempted murder) was the natural and probable
consequence of the conspiracy.]”
5 The People charged Lee, Banaag, and Tsui in the
information, but did not try Tsui with Lee and Banaag.
6 CALJIC No. 6.10 required the jury to find one or more of
the conspirators committed “at least one” of the alleged overt
acts.
12
That left only Lee and Banaag, and as discussed, Lee does not
dispute the People prosecuted him as the shooter and Banaag as
the aider and abettor. Indeed, the jury instructions did not give
the jury an option to convict Banaag as a direct perpetrator of
attempted murder. The trial court instructed the jury that it
could convict Banaag of attempted murder, assault with a
semiautomatic firearm, and mayhem only as an aider and
abettor, under one of two theories: (1) as a direct aider and
abettor of attempted murder, assault with a semiautomatic
firearm, and mayhem; or (2) under the natural and probable
consequences doctrine, if Banaag aided and abetted the target
offense of burglary or conspiracy to commit burglary, and a
coprincipal in one of the target offenses committed attempted
murder, assault with a semiautomatic firearm, or mayhem,
which was a natural and probable consequence of the commission
of a target offense. Because the jury found Banaag guilty of
attempted murder, it necessarily found Banaag was an aider and
abettor. Therefore, the jury had to find someone other than
Banaag was the direct perpetrator. That could only have been
Lee. By finding Lee guilty as a direct perpetrator, the jury found
that he took a direct but ineffectual act toward killing Kisely and
that he intended to kill. (See People v. Chhuon and Pan (June 1,
2026, S105403) ___ Cal.5th ___, ___ [2026 WL 1530451, p. 63]
[“‘“Attempted murder requires the specific intent to kill and the
commission of a direct but ineffectual act toward accomplishing
the intended killing.”’”]; People v. Morales (2024) 102 Cal.App.5th
1120, 1132 [“the jury’s finding that an attempted murder was
committed means the jury must have found, as a factual matter,
that one of the robbers, with intent to kill, took a direct but
ineffectual act toward killing” the victim].)
13
Lee contends “the prosecutor’s charging decisions, here his
decision to target only [Lee] as the direct perpetrator and, for
that matter, to leave the other four alleged coconspirators out of
the trial entirely, does not mean that the jurors agreed with his
theory of who among the six was primarily responsible for the
attempted murder.” The case Lee cites, People v. Estrada (2024)
101 Cal.App.5th 328, however, does not support his contention.
In Estrada the defendant pleaded no contest to attempted
murder and voluntary manslaughter. (Id. at p. 334.) The People
in Estrada argued the superior court did not err in denying the
defendant’s petition under section 1172.6 at the prima facie stage
because the information established the defendant was the sole
perpetrator. (Estrada, at p. 339.) The court in Estrada
disagreed, stating that, though the defendant was charged alone,
“a charging decision does not establish any facts as a matter of
law,” and “the information did not foreclose the prosecution from
presenting imputed malice before a jury regardless of whether it
charged others.” (Ibid.) Here, unlike in Estrada, the record of
conviction includes not only the information, but also the jury
instructions and verdict form that show, as discussed, the jury
found Banaag guilty of attempted murder as an aider and abettor
and found Lee shot Kisely.
Lee also argues the jury’s true finding on the firearm
enhancement does not show he intended to kill. Lee is correct
that section 12022.53, subdivision (d), “provides the defendant
must have intended to discharge a firearm,” but “does not require
the prosecution to prove that the defendant harbored a particular
mental state as to the victim’s injury or death.” (People v. Offley
(2020) 48 Cal.App.5th 588, 598.) The jury’s true finding on the
allegation under section 12022.53, subdivision (d), however,
14
established that Lee, not Banaag, shot Kisely. (See People v.
Morales, supra, 102 Cal.App.5th at pp. 1133-1134 [“the relevance
of the section 12022.53[, subdivision] (d) firearm discharge
finding in this case is not to prove the requisite mental state but
to establish that the jury found [the defendant] was the shooter
and, therefore, was the direct perpetrator of the attempted
premeditated murder”].) The jury’s finding Banaag aided and
abetted Lee in committing attempted murder, as discussed,
showed the jury found Lee intended to kill.
Lee argues the superior court had to hold an evidentiary
hearing to determine whether Lee was the sole shooter and “what
his intent was in firing his weapon.” Lee, however, submitted a
form petition and did not allege any specific facts identifying a
second shooter or explaining how Banaag or another
coconspirator could have been the direct perpetrator of the
attempted murder. As the Supreme Court stated in Patton,
supra, 17 Cal.5th 549, “petitioners confronting a record of
conviction that demonstrates relief is unavailable have the
burden of coming forward with nonconclusory allegations to alert
the prosecution and the court to what issues an evidentiary
hearing would entail.” (Id. at p. 567.) “A dispute regarding the
basis of a conviction might arise if, for instance, a petitioner
points to specific facts that identify someone else as the direct
perpetrator. . . . But absent specific facts, no such dispute
arises . . . from mere latent, speculative possibilities; that is, a
hypothetical alternate direct perpetrator cannot be conjured from
thin air or a legal conclusion.” (Ibid.)
In the superior court Lee could have presented specific
facts showing he was eligible for relief in his petition, in a
“substitute petition for resentencing after appointment of
15
counsel” (Patton, supra, 17 Cal.5th at p. 568), in a reply brief, or
at the hearing. (See § 1172.6, subd. (c) [petitioner may file a
reply to the prosecutor’s response, and the court must hold a
hearing after the parties submit briefs].) But Lee did not submit
a reply brief, and his counsel did not present any argument at the
hearing. (See Patton, at p. 569 [defendant’s “petition contains
only a checkbox declaration with legal conclusions, he submitted
no reply, and he made no argument when invited to do so at the
prima facie hearing”]; cf. People v. Offley, supra, 48 Cal.App.5th
at p. 594 [defendant submitted a declaration with his
section 1172.6 petition claiming he did not kill the victim and
citing “portions of the trial transcript in his case in which the
prosecutor agreed that a bullet from [the defendant’s] gun could
not have killed” the victim].)
DISPOSITION
The order is affirmed.
SEGAL, J.
We concur:
MARTINEZ, P. J.
STONE, J.
16